National Association of Home Builders 15th and M Streets, N.W., Washington, D.C.

20005 (202) 822-0401 Fax No:(202) 822-0374 Kent W. Colton, Ph.D. Executive Vice President & Chief Executive Officer October 23, 1991 Mr. John Wodatch Office on the Americans with Disabilities Act Civil Rights Division U.S. Department of Justice Washington, DC 20530 Dear Mr. Wodatch: On behalf of the 153,000 members of the National Association of Home Builders, I would like to commend your office on the regulations issued recently implementing the Americans with Disabilities Act. As we stated in our April 23, 1991, comment letter on the proposed regulations, we support the ADA objective of making public accommodations and commercial facilities accessible to, and usable by, persons with disabilities. While we believe the final regulations meet this objective without imposing undue burdens on owners of such structures, we would like to call to your attention an issue that the Department apparently overlooked in the final regulations. Our review of the regulations indicates that accessibility requirements for model homes are not clear. We are therefore requesting that the Department clarify that model homes are not covered under the ADA. We believe that such clarification is necessary in order to assure that compliance with ADA will proceed in an orderly manner in the building industry. Typically, when a builder develops a subdivision, the first few homes to be completed are set aside as "models." These homes are fully furnished to give the potential buyer an opportunity to compare different designs. The models may have a small area furnished with a desk and a phone for sales purposes. As stated in our comment letter on the proposed rules, a model

home is not a "commercial facility" or a "public accommodation" under the ADA. A model home is a building designed or intended for occupancy as a residence. As such, under Section 301(2) of ADA, Civil Rights Division Coordination and Review Section P.O. Box 03118 202-PL-00121 Washington, D.C. 20036-6118 (STAMP) OCT 30 1991 Mr. John Wodatch October 23, 1991 Page 2 it is expressly excluded from the definition of "commercial facility." Furthermore, a model home does not qualify as a "public accommodation" since it is neither a "sales and rental establishment" or a "place of lodging." The question arises as to whether a model home is transformed into a "public accommodation" merely because it is open to the public for a limited time for sales purposes. We do not believe that it is. A model home is, by definition, a residential structure, temporarily used for sales purposes. To require accessibility to these homes would force builders to change the essential character of the home. For example, widening doorways or changing room dimensions might be necessary. It would be deceptive to the potential purchaser to require accessibility since the actual home for sale might not incorporate accessibility features. In addition, it would pose an undue hardship on a builder to make a model home meet accessibility requirements since once the model is no longer required, the home would have to be changed back to it original design at the time of sale. This is not a reasonable approach to accommodating persons with disabilities. The Department has recognized that a private home used exclusively as a residence is not covered by ADA because it is neither a "commercial facility" nor a "place of public accommodation." 56 Fed. Reg. 35559 (July 26, 1991). However, Section 36.207 of the regulations requires that where a private home is not used exclusively as a residence, but operates as a place of public accommodation in all or part of the home, that portion used exclusively in the operation of a place of public accommodation is covered by ADA. Section 36.207 also states

that the portion of a private residence used both for the place of public accommodation and for residential purposes is covered by ADA. This section contemplates a long-term use of a portion of the residence as a public accommodation. A model home does not meet the criteria set forth in Section 36.207. It is in fact a residence and no portion of the home is used exclusively as a place of public accommodation. Furthermore, since a model home is only temporarily used for sales purposes, there is no point in time at which any portion of the home is used both as a private residence and as a place of public accommodation. Therefore, no accessibility should be required in the home itself. In our view, only a sales office that is separate from the actual residence, such as a sales trailer, should be required to be accessible. This type of structure is exclusively used for sales purposes and therefore qualifies as a "public accommodation". Such an interpretation will not only insure that public has access to sales facilities, but will also insure that residential Mr. John Wodatch October 23, 1991 Page 3 structures are maintained as such. We believe this interpretation is consistent with the ADA as well as the Department's regulations. Because of the building industry's need for immediate guidance, we would appreciate it if your office would issue an interpretative opinion clarifying this issue. We would be pleased to provide you with additional information should you so desire. Thank you for your immediate attention. Sincerely

Kent W. Colton Executive Vice President and Chief Executive Officer